UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division

BRIAN D. FARABEE,

Petitioner,

v. Case No.: 2:24cv493

COMMISSIONER OF THE VIRGINIA DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES, et al.,

Respondents.

FINAL ORDER Before the Court is a Petition for a Writ of Habeas Corpus filed pursuant to

, ECF No. 1, Respondent The Commissioner of the Virginia Department of Behavioral Health and Developmental Services’ Motion to Dismiss, ECF No. 6, and Respondent the Director of the Virginia Department of Corrections’ Motion to Dismiss, ECF No. 13. In his Petition, the pro se Petitioner alleges violation of federal rights pertaining to his ongoing detention at Eastern State Hospital. ECF No. 1. The Petition was referred to a United States Magistrate Judge for report and recommendation pursuant to the provisions of

(b)(1)(B) and (C) and Local Civil Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia. The Magistrate Judge’s Report and Recommendation, filed July 10, 2025, recommends dismissal of the Petition without prejudice. ECF No. 37. Petitioner timely filed objections to the Report and Recommendation. ECF No. 39. Respondents have not responded to Petitioner’s objections and the time to do so has expired. Having reviewed the record and examined the objections filed by Petitioner to the Report and Recommendation, and having made de novo findings with respect to the portions objected to, the Court does hereby ADOPT and APPROVE the findings and recommendations set forth in the Report and Recommendation filed July 10, 2025. ECF No. 37. It is, therefore, ORDERED that the Motions to Dismiss, ECF Nos. 6 and 13, be GRANTED, and that the Petition, ECF No. 1, be

DENIED and DISMISSED WITHOUT PREJUDICE. It is further ORDERED that judgment be entered in favor of the Respondents. Petitioner also filed a Motion to Appoint Counsel on July 23, 2025. ECF No. 40. Therein, Petitioner argues that he does not have access to a law library and legal documents, and that counsel is warranted because he has demonstrated a likelihood he can succeed on the merits.

“There is no right to counsel for state prisoners seeking habeas corpus relief in the federal courts in non- death penalty cases.” Murray v. Johnson, No. 2:09cv476,

, at *2 (E.D. Va. Mar. 11, 2010) (citing McCleskey v. Zant,

(1991)); Penn. v. Finley,

(1987)), report and recommendation adopted sub nom. Murray v. Dir., No. 2:09cv476,

(E.D. Va. Apr. 5, 2010). Although appointment of counsel is permitted under 18

U.S.C. § 3006A(a)(2)(B), it is not required unless the petitioner is granted an evidentiary hearing. Rules Governing Section 2254 Cases 8(c). Here, Petitioner has not been granted an evidentiary hearing, and the Court has found that his Petition should be dismissed without prejudice. Accordingly, there are no circumstances that warrant appointment of counsel in this matter. Petitioner’s Motion to Appoint Counsel, ECF No. 40, is therefore DENIED. Finding that the procedural basis for dismissal of Petitioner’s § 2254 petition is not debatable, and alternatively finding that Petitioner has not made a “substantial showing of the denial of a constitutional right,” a certificate of appealability is DENIED.

(c);

2 see Rules Gov. § 2254 Cases in U.S. Dist. Cts. 11(a); Miller-El v. Cockrell,

(2003); Slack v. McDaniel,

(2000). Petitioner is ADVISED that because a certificate of appealability is denied by this Court, he may seek a certificate from the United States Court of Appeals for the Fourth Circuit. Fed. Rule App. Proc. 22(b); Rules Gov. § 2254 Cases in U.S. Dist. Cts. 11(a). If Petitioner intends to seek a certificate of appealability from the Fourth Circuit, he must do so within thirty (30) days from the date of this Order. Petitioner may seek such a certificate by filing a written notice of appeal with the Clerk of the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510. The Clerk is REQUESTED to please forward a copy of this Order to Petitioner and to counsel of record for the Respondents. IT IS SO ORDERED.

Qrewola. & te ght Gly, Arenda L. Wright Allen United States District Judge Norfolk, Virginia August 27, 2025